The Civil Rights Act After Twenty Years. Part Two: The Collapse of Enforcement

By Julius L. Chambers

Vol. 7, No. 1, 1985, pp. 10-13

During the past week I have attended four meetings where we were discussing the Civil Rights Act of 1964 and the 1984 election. It has been a very depressing week.

At a meeting last night, for example, we were addressing the question of whether we should continue with affirmative action. Several very strong advocates of civil rights who were present were talking about ways to compromise affirmative action.

I attended another meeting this week where we were talking about poverty. Some very strong advocates of civil rights suggested ways that we could compromise some of the advocacy that we were pursuing in order to make our position more palatable to our opponents.

Then I attended a meeting in Cleveland with black educators and heard opposition to school desegregation. I heard advocacy for the development for black institutions because those institutions were needed in order to protect and preserve the interest of blacks. Reflecting on what has happened over the twenty years since the passage of the Civil Rights Act, one can begin to appreciate why the current pessimism exists. A brief review of the history of the Act's provisions regarding employment discrimination (Title VII) is instructive.

Proving Employment Discrimination

In 1971, the US Supreme Court held in Griggs v. Duke Power Company that an employer did not have to intend to discriminate to be in violation of Title VII. It was sufficient to show that the employer used practices which had an adverse or disproportionate impact on a group or class


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covered under Title VII, and that such practices were not necessary to determine or to predict successful job performance. This was the legal theory of disparate impact.

In 1977,in US v. Teamsters the Court discussed the method of proof which had developed in Title VII litigation. In addition to disparate impact, there existed the legal theory of disparate treatment (i.e., intentional discrimination). Thus, in employment discrimination cases, one proves a claim either by disparate treatment or disparate impact. The problem with Teamsters is the emphasis the Court placed on proof of intent which is required in disparate treatment cases. At best, proof of intent is difficult to establish. The emphasis placed on intent in Teamsters has led some lower courts to require practically impossible standards on proof.

During the past four years, the US Department of Justice has been moving toward a point where disparate impact will not be valid proof of employment discrimination. It will be necessary to establish disparate treatment in every instance.

Recently, this theory was laid out in the Justice Depart meet's brief in Williams v. City of New Orleans, one of our (Legal Defense Fund) cases which involves the exclusion of blacks from employment in New Orleans' police department. The Department argued that the affirmative action incorporated in a consent decree was "reverse discrimination," in violation of Title VII. The Department maintained that one had to be an established victim of discrimination in order to be eligible for affirmative relief. As a practical matter, this would rule out affirmative action in class actions.

In another case, Memphis Firefighters Local Union, No. 1784 v. Stotts, the Supreme Court overturned a lower court ruling that protected from layoff black workers hired under an affirmative action plan. The Justice Department asserts that under Stotts, one must be a victim of intentional discrimination in order to be provided affirmative relief, a position which would, in fact, abolish affirmative action.

Under these standards of proof, nobody will be able to prove employment discrimination. Let me give you an example:

Three or four years ago in North Carolina, we tried Anderson v. Bessemer City, which involved a black woman who applied to head the Bessemer City recreation department. Her qualifications were superior. She was rejected by everyone except the sole woman on an otherwise all-male board. A federal district court agreed that we had proved intentional discrimination. The city appealed.

The Fourth Circuit sided with the city. It held that if the men on the board employed women in other capacities, or if their wives worked, then they obviously could not intentionally discriminate against this particular woman. If one analyzes this rationale, one could never prove intentional discrimination.

Take, for instance, the case of a qualified black person who is denied a promotion by a white employer and seeks to show discrimination. Under the standard set by the Fourth Circuit in Anderson v. Bessemer City, if the white employer had ever promoted a black person, a claim by any other black employee of intentional discrimination would not be considered. Fortunately, after hearing oral arguments this past fall, the US Supreme Court has overturned (March, 1985) the Fourth Circuit's decision; the earlier finding of discrimination has been reinstated.

Between 1965 and 1977 it was possible for a plaintiff to establish a violation of Title VII through disparate impact, and even disparate treatment. The proof required was a showing that one was treated differently. Courts did not emphasize proof of intent. But, in 1977, Teamsters changed all of that. And today, with respect to enforcement of Title VII, plaintiffs in many instances are being denied effective remedies.

The Point of No Relief?

There is another aspect of Title VII relief that has undergone significant change. For example, previously, if one accomplished the near-impossible and proved intentional discrimination, the courts directed broad relief. Today, we get much less. Even when an individual is entitled to affirmative relief, he or she is not, in the language of the law, "made whole." Again, let me give you an example.

If it is proven that an individual was denied a promotion because of race or sex, the person does not automatically move to the new position and bump the incumbent. He or she must wait for another vacancy to occur. In the interim, the victim is given "front pay" to compensate for the loss, and is given preference to fill a comparable vacancy when--or if--it occurs.

But does that "make whole" the person who has suffered discrimination? What about interest on the lost wages? What happens when no vacancy occurs within a certain amount of time? Should the employer be required to find a comparable slot and, if appropriate, train the individual to fill it? These are pressing questions, but I, for one, do not anticipate that courts today will deal with them.

Another example of the difficult problems that are encountered in Title VII litigation. We filed an employment discrimination case in 1974 on behalf of a class of four hundred black workers in a large paper mill in North Carolina. The case, Albemarle Paper Company v. Moody, has been to the US Supreme Court, back to the lower courts, and through numerous legal proceedings. Despite eleven years of litigation and over $400,000 in costs, only one hundred black workers have moved from low-paying, dead-end jobs in the woodyard to machine operator's jobs inside the mill. One cannot but conclude, after examining the data, that most of the black workers have not moved up because


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they are not able to operate the machines. Is the lack of capability their fault? Is it the fault of the employer for not providing training? Is it the fault of the state for not ensuring that individuals are offered equal skills in order to enter the job market? What kind of relief do those three hundred black workers need?

Which leads me to mention that civil rights groups today may be focusing too much on the problems of middle-class blacks. It is time that all of us begin to address the needs of the two thirds of the black population who constitute the "underclass" and the working poor--those individuals who are not necessarily benefitting from the advances in civil rights law of the Past twenty years.

Title VII-A Dead Statute?

To return to Title VII. A third problem is the question of who is responsible for enforcement of the law. Over five thousand employment discrimination cases were filed in 1983. The federal Equal Employment Opportunity Commission (EEOC), which has the authority to bring Title VII lawsuits, was involved in less than one-third of them. Most were brought by private litigators--at extraordinary cost. It used to be possible to litigate an individual case for $5,000 to $10,000. Today, one case will will [sic] cost $50,000 to $70,000. A class action that used to cost $50,000 to $100,000, now costs between $300,000 and $500,000. I have been involved in a case for four years that was brought on behalf of a relatively small class--about twenty-four individuals. To date, it has cost over $400,000. The defendant has spent over $3.2 million. If we win everything to which our plaintiffs are entitled, the monetary relief would total approximately $100,000--and this to obtain rights we believe are spelled out in Title VII.

But that is where we are today. In my visits to LDF's cooperating attorneys around the country, I am told by most that they do not want to litigate any more Title VII cases. It costs too much. It takes too long for them to recover costs. And, the courts are not favorably disposed. Even if successful, the relief is too limited and the amount recovered in attorney fees is much too little for the time, effort and risk that these cases entail.

If the private bar is not going to enforce Title VII, if the Justice Department is not going to enforce Title VII, if EEOC is not going to do more in terms of litigating these cases--is Title VII not going to become a dead statute?

To summarize: Initially the courts interpreted Title VII liberally--procedurally, substantively and with respect to relief. Despite reluctance by the Department of Justice and the inability of EEOC to become involved, an active private bar brought a number of cases--most often without adequate compensation. Today, courts are interpreting Title VII more strictly, limiting what can be obtained in relief, and deterring individuals who want to bring cases.

Title VII and Education

It is also worthwhile to discuss here the status of school desegregation. Since 1964, I have been involved in legal efforts to desegregate the Charlotte-Mecklenburg [NC] public school system. Eventually, through our lawsuit, Swann v. Charlotte-Mecklenburg Board of Education, and others, we moved the Supreme Court from a limited interpretation of Brown to a position that effective desegregation required affirmative steps.

Within the Charlotte community, we have moved from al reluctance to accept desegregation, to active support. During a pre-election visit to Charlotte, President Reagan criticized court ordered busing, calling it a "failure." The Charlotte Observer responded with an editorial, "You Were Wrong Mr. President." All of us are proud of what has been accomplished with Charlotte Mecklenburg's desegregation plan, which includes busing.

Many other communities have had problems in desegregating their school systems. Those are communities in which the Southern Regional Council, indeed all of us, must be available to help.

Then there are communities that remain untouched by desegregation efforts. I refer to majority black school districts in urban areas. A recent report stated that over sixty-eight percent of the black students in Harlem drop out of school. Many schools in urban areas are as bad as the segregated school I attended before Brown.

Are we devoting as much attention as we should to what goes on in urban public schools--whether or not they are desegregated? Why are black students not performing well on standard exams? On SAT's? Why are more black students not entering college, graduate programs, professional schools?

Black high school graduates do enter college at about the same rate as whites. But although the enrollment of black students has increased in undergraduate schools, black enrollment in graduate and professional schools has decreased. Our future well-being depends on our ability to address these issues and find answers to the problems they present.

This must be done within the constraints of the realities we face today. Despite lack of support from the federal government, we must work to reinstate the approach to implementation of Title VI and other sections of the Civil Rights Act, and to the enforcement of Brown, that we had several years ago.

Deja Vu at Chapel Hill

Before the November election, I returned to the University of North Carolina campus at Chapel Hill. I was disturbed by


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what I saw. The attitude of white students reminded me of the 1950s when I was a student in the law school. For those three years, even as editor-in-chief of the law review, I could not attend the school's social functions because they were held at a segregated establishment. This year I saw some of that same attitude among white students. That ought to bother all of us. I could not help but wonder whether Mr. Reagan was contributing to this attitude.

Despite such pessimistic observations, I remain an "optimist. Even as one considers the plight of the underclass, of minorities, of women, it is possible to take some solace if we contrast today's reality with the mood of the country in the 1940s and '50s. It took a lot of work, a lot of litigation and legislation to change things. We cannot quit now. We must press ahead.

In the 1930s and '40s, few people would have predicted that by 1954, the Supreme Court would decide Brown v. Board of Education the way it did. Today we can develop similar efforts to urge the courts to consider new interpretations of the Fourteenth Amendment, perhaps the establishment of poverty or economic status as a protected classification. I agree that moving the Court that far will be difficult. We can, however, begin to lay the groundwork.

Other issues which must be considered by the Southern Regional Council include the seventy-five vacancies on the federal courts. President Reagan will have these, and perhaps several vacancies on the Supreme Court, to fill during the next four years. The Council should be prepared when appointments to the federal courts are made. With respect to Supreme Court and other federal judicial nominees, we should raise our concerns where necessary and appropriate. Even the Senate may listen if it hears a unified voice.

Some candidates who have been advanced for appointment to the federal bench lack qualifications. A recent nominee for the Fourth Circuit had never practiced law a day in his life. By forming alliances we can provide the Senate with information it needs to investigate the qualifications of candidates for federal judgeships.

It has occurred to me also that we ought to focus more on the potential for progress in civil rights at state and local levels. The Council has been effective in helping good people get elected to state government, state legislatures and city councils. The Voting Rights Act has been a major and significant tool in this effort. In North Carolina, after reapportionment, a few more blacks were elected to the state legislature. Throughout the states, despite Mr. Reagan's victory, we have elected legislators who are responsive to our concerns.

Is it not possible for us to work through the Council and other organizations to push states and municipalities to enact laws similar to the Civil Rights Act of 1964? This might enable us to build support at state and local levels that will influence what happens at the federal level.

We have means today that we did not have years ago. We have new attitudes among blacks and some whites that will surely result in speeding the change we seek. The Council has a role in mobilizing these groups and working with them to advance our agenda. We must be more assertive in using news media outlets to present our viewpoint as a counterbalance to the conservative "think tanks" and fundamentalist religious groups who oppose a fully integrated society.

As we observe the evolution of equal rights and opportunities during the past twenty years, we can point to progress. Some of the old obstacles have been removed, but new ones have taken their places. But that should not and must not deter us from trying to make this a world of equality and justice for all.

During the fortieth anniversary meeting of the Southern Regional Council, held in Atlanta this past November, Pulitzer Prize winning journalist Harry Ashmore, Julius L. Chambers-director of the NAACP Legal Defense Fund, and former SRG executive director Harold Fleming reflected upon the status of civil rights twenty years after the passage of the 1964 Civil Rights Act. An additional comment was offered by Paul Gaston, professor of history at the University of Virginia and current president of the Southern Regional Council. In the following pages, we present the perspectives of these long-time observers of, and participants in, Southern changes.

Julius Chambers, a past president of the Southern Regional Council, is director of the NAACP Legal Defense Fund.